As beloved by students as he is by many lawyers who practice before him, this Nashville School of Law alumnus and professor teaches future litigators the finer points of criminal trial practice and procedure.
Judge Mark Fishburn is a criminal court judge in Davidson County who doubles as a professor at his alma mater and believes in the power of mentoring law students and lawyers.
“I believe in the golden rule and I believe in helping people,” he said.
Born in Nashville, Fishburn graduated from Father Ryan and earned his undergraduate degree at the University of Tennessee, where his original interests were in business rather than in law.
Upon graduation, he took a job with the Metropolitan Government of Nashville as an analyst. He later moved up the ladder to become the head of Labor and Employee Relations. In this job, he established classifications and pay for Metro employees, attended employee discipline hearings, handled the application of OSHA and federal labor laws, and dealt with unions.
“I started reading many regulations and various labor laws and realized that a law degree would be beneficial,” Fishburn said. “There was only one school that would allow me to keep my daytime job and pursue a legal education – Nashville School of Law.”
Fishburn loved criminal and constitutional law while a student.
“I found constitutional issues in criminal cases fascinating,” he recalled.
After graduating in 1979, he went to work for noted personal injury attorney Bart Durham, who allowed Fishburn to keep some clients on retainer. At Durham’s law firm, he gained experience in personal injury and workers’ compensation cases.
He worked there for 18 months before taking the plunge and hanging his own shingle. He absorbed as much information as he could from experienced attorneys Dan Garfinkle, David Rutherford and Rich McGee.
“At that time, the criminal defense bar was small,” he said. “It was common for us to get together and talk about issues we faced.”
His practice initially focused on civil cases, but gradually garnered more criminal cases, as some of his civil clients had issues with the criminal justice system. He found his true love of the law in criminal litigation, even handling a number of death penalty cases.
“In criminal law, it is pure trial advocacy,” he said. “Significant constitutional issues often arise. You have to be flexible and think outside the box.”
As well-respected as he is on the bench, he’s also remembered for his skill as a practicing attorney.
“He was the go-to attorney for a number of judges on appointed death penalty cases,” said retired criminal defense attorney and former Davidson County magistrate Tom Nelson (1985). “He often would take the most difficult and demanding cases. And he was a tremendous advocate.”
After 19 years of private practice, a group of friends convinced him to run for general sessions judge, an election he won. In general sessions, Judge Fishburn created a mental health court – just the fourth of its kind in the nation at the time. Under this court, individuals could seek diversion and obtain needed mental health evaluations and help.
“I saw many people coming through the court, often repeatedly, who had significant mental health issues,” he said. “It was a positive program that helped change lives for the better.”
In 2003, Gov. Phil Bredesen elevated him to his criminal court judgeship, where he has remained ever since. No one has even challenged the popular judge in an election, and attorneys praise him for his effective handling of the courtroom.
“Judge Fishburn is consistent, professional, on time and very efficient in the courtroom,” said Nashville-based criminal defense attorney Holly Troutman. “He is prepared to conduct hearings. He listens to both sides equally and he clearly explains his rulings.”
“He is well known as a fair and impartial judge,” said Mark Kovak, who also practices before Judge Fishburn. “He lets you try your case. He puts thought into every one of his decisions and explains why he rules the way he does.”
“He was excellent to try a case in front of,” said criminal defense lawyer Rob McGuire, who worked at the district attorney’s office for 13 years and for six years was the D.A.’s team leader in Judge Fishburn’s court. “I probably tried between 40 to 50 jury cases in his court. He lets lawyers try their cases and is excellent on the law. He has a great presence. He was really excellent with young lawyers, as he is a teacher at heart.”
After years of assisting longtime moot court instructor Jack Butler on the appellate portion of the course, Judge Fishburn joined the School’s faculty in 2013 as a moot court instructor. This year, he helped launch the new trial practice curriculum and teaches Criminal Trial Practice. The teaching comes naturally to him, both on and off the bench.
“My mother was a teacher,” he says. “And I love engaging younger minds on the topics of the day.”
His love for it shows, as his students enjoy his teaching style.
“He encouraged us to do what lawyers do in courts,” said former student Tim Horne (2016), now an assistant district attorney in the 1st Judicial District. “He encouraged independent, critical thinking. He didn’t just sit there and lecture; he guided us to test the waters. It never felt like we were taking up his time. Instead, he patiently taught and mentored us in class. It was an honor to be his student, an honor to be his friend, and it would be the ultimate honor to argue in his courtroom one day.”
Judge Fishburn views his teaching as a way of giving back to NSL.
“If it wasn’t for NSL, I wouldn’t be on the bench,” he said.