Vol. 75, No. 2, February 2002

Atypical Career Path is Satisfying
Right on Course

by Dianne Molvig

LAWYERS' CAREER PATHS MAY have a few bends, minor detours, and even a sharp turn here or there. But Mark Frankel's nearly 29-year law career has meandered more than most. "It's not typical, by any stretch," he concedes.

Now that he's in private practice, Frankel intends to combine his mediation/ negotiation skills with litigation skills. "I think that's the wave of the future as far as most litigators are concerned," he says.

Photo: Janet McMillan

After a brief stint as a sole practitioner right out of law school, Frankel partnered with two other lawyers to launch a community law office that represented such clients as the Madison Tenants Union (now Tenant Resource Center) and United Farm Workers in the mid-1970s. At age 30, he became the state's youngest circuit court judge. He was already a 20-year judicial veteran by the time he hit 50, when he stepped down from the bench, much to many people's surprise. He then became a corporate lawyer for Madison Gas & Electric, and two years later, in September 2001, he made his latest move, circling back to private practice. Now he's a partner in one of Madison's largest law firms, LaFollette Godfrey & Kahn.

"I feel I'm in a very good place," Frankel says, sitting in a conference room with a State Capitol view, on a December morning just three months into his new job. He perhaps is speaking not only of his current position and firm, but also in a broader sense about feeling he is right where he should be in his career and life. Now that he has returned to private practice, he's focusing on both litigation and alternative dispute resolution. Everything he's done in the past 29 years has led to this juncture - even if more twists and turns sprang up along the way than Frankel once would have predicted.

One thing he's always known, however, is that law is his chosen profession. Growing up in Highland Park outside Chicago, Frankel decided at a young age that he wanted to follow in the footsteps of his father, a highly respected attorney. His mother also influenced his aspirations. "She instilled in me that it was her obligation and mine to make the world a better place," Frankel says. For example, she spurred her son to participate in the Selma-to-Montgomery civil rights march when he was just 16, and to work in Chicago's Cabrini-Green housing project in summers during high school.

When Frankel graduated from the U.W. Law School in 1973, he aimed to land a job somewhere in the country working on prison law reform. To tide him over while he searched, he set up a sole practice in Madison. Soon he joined Lester Pines and Harold Langhammer in opening a community law office. The prison reform job never materialized, but the community law practice took off. There Frankel got his chance, after all, to advocate for prisoners' rights, and to handle a diverse array of civil and criminal defense cases. He also worked on other social justice issues, such as migrant labor law and tenants' rights, and helped to set up the Dane County Rape Crisis Center. His social activist tendencies carried over into his private life, too. He volunteered as a Big Brother, and he was a foster parent to a 16-year-old boy, at whose wedding Frankel would officiate some 20 years later.

After only six years in practice, Frankel spotted another opportunity he simply couldn't pass up. The idea of serving on the bench had been "just a glimmer in the back of my mind," he notes, dating back to when he'd served as a clerk for Judge James Doyle Sr. during law school. Then in 1979, Dane County created two new circuit court branches, which meant elections for two new judgeships with no incumbents. Frankel knew this situation might not arise again for years, so he decided to run. "I was young and brash, I guess, and figured I had little to lose," he says. Indeed, he won, with his history of community activism being a major factor in garnering voters' support.

Acclimation and Innovation

Once Frankel was elected, his key initial challenge as a new judge was to be taken seriously by all who appeared before him. Could this left-leaning, 30-year-old lawyer with only six years of practice experience be judge material? "I'm sure there was some degree of skepticism," Frankel acknowledges.

As he acclimated to being on the bench, "what I found most difficult," he recalls, "was finding a comfortable dynamic in managing the lawyers in court." He soon learned a lesson perhaps useful to judges of all ages and tenures. People in black robes tend to come across as solemn figures in the first place, but as a young judge out to prove himself, Frankel may have tried extra hard to present a serious demeanor in the courtroom. Feedback he heard from lawyers said, in essence, "Lighten up." He took this advice to heart.

"I mistakenly believed that if I was diligent and serious about the job, that was all that was required of me," Frankel says. "But in addition to having a thoughtful judge and getting a good decision, lawyers want a judge who's a friendly, warm human being, because they're spending a difficult time in the courtroom. A judge who has a sense of humor and a human touch is more effective than one who's all business."

Thus, Frankel had to make adjustments to fit into his new role. But he also felt the system itself could stand some adjustments. "One of my goals was to be innovative," he says. "If I could think of different ways of doing things that were nontraditional but made more sense, I'd give them a try."

One such innovation was in how Frankel related to juvenile offenders in the courtroom. As juvenile court judges often do, he'd say a few words to a young offender at the close of a trial, trying to "get through." But Frankel quickly became frustrated with the process. "Many of these kids were tuned out to almost any adult authority figure," he recalls. "They'd sit back in their chairs, roll their eyes, and wonder, 'When is this old guy going to get done with this lecture I don't want to hear?'"

So he tried a different approach. At the close of a trial, he would call the defendant up to the bench, extend his hand for a firm handshake, and look the young person straight in the eye while they talked. It was a way to bridge the distance, in more ways than one, between the bench and the defendant's table. "It was a different level of personal connection," Frankel notes. "I'd frequently see tears in their eyes. I can't tell you that every time I had a salvaged soul. But I felt there was a much more meaningful human interaction going on."

Improving human interaction in divorce cases was another of Frankel's goals as judge. He saw divorce trials as painful for all involved: litigants, lawyers, and even judges. Again, Frankel looked for another way. "I found I could save everybody time, money, and anguish," he says, "by giving the lawyers the feedback they needed in order to resolve the case themselves." He was, in effect, using alternative dispute resolution, at a time when it was still fairly uncommon.

Frankel's approach unsettled some divorce attorneys. "The key to the process that I don't think all lawyers figured out," says Madison attorney Allan Koritzinsky, "was that you had to be extremely well-prepared and able to think on your feet. You had to have your client's priorities in mind and be able to succinctly present his or her case." Lawyers who could operate in that mode, he adds, did well in divorce mediations before Frankel; those who couldn't weren't as comfortable with the process.

But, in time, lawyers and parties alike came to expect that if a divorce went to Frankel's court, it would be mediated with him, not litigated before him. "He would take whatever time it took," Koritzinsky says, "and expend whatever energy necessary to get it done."

Wider Influences

"One of my goals was to be innovative. If I could think of different ways of doing things that were nontraditional but made more sense, I'd give them a try."

Photo: A. Craig Benson

Other changes Frankel implemented reached beyond the walls of his own courtroom. In the mid-1980s, he recognized the need to revise sentencing practices for drunk driving. At the time, all drunk-driving offenders who pled guilty received the same mandatory minimum sentence. "I didn't think it made sense to treat everybody the same," he says, "because some forms of drunk driving clearly are more aggravated than others."

So Frankel drafted new sentencing guidelines to differentiate levels of seriousness of drunk-driving offenses. His Dane County colleagues approved the guidelines, and soon several other counties adopted them as well. Eventually, the state Legislature made these sentencing guidelines mandatory statewide.

In another shift from tradition, Frankel was the first judge in the state to allow jurors to ask questions during trials, an idea he first heard a Michigan federal judge speak about at a national conference. Frankel believed that jurors, who were making crucial decisions, ought to have the right to ask questions, just as judges do. It was, he admits, a practice that initially made lawyers nervous, and still often does. Attorneys fear a juror will ask the very question they are hoping opposing counsel will fail to ask.

In the final analysis, however, it comes down to a conflict between protecting a lawyer's right to take advantage of opposing counsel's tactical omissions and jurors' confusion about the facts, and the need to search for the truth, Frankel contends. "That's an easy balance to strike," he says, "in favor of the jury's right to understand what it is they're grappling to resolve."

Still, jury questioning hasn't caught on with judges as much as it might, Frankel believes. As for lawyers, he says they have less to fear from jury questions than they think. The way the process works is that jurors don't blurt out questions; they write them down and pass them to the judge, who then goes over the questions with both attorneys, out of hearing of the jury. Attorneys can object to questions, judges can rephrase troublesome ones before they're asked, and lawyers can ask followup questions of the witness. In fact, Frankel sees advantages to attorneys. "They get some early indications, albeit rough, of what the jury is thinking," he notes, "and what the jury's level of understanding may be," which can help lawyers adjust their case presentation midstream.

What's more, jury questioning wins high marks with jurors, Frankel reports. "I met with jurors after trials," he says, "and almost uniformly they were delighted to have had the opportunity to ask questions, even if they didn't use it. They didn't feel like the 'potted palms' they are in a courtroom where they're told to just sit there and listen, but not speak."

New Directions

After two decades on the bench, Frankel still felt challenged in his judicial role. But he also grew more aware of what he was missing. Increasingly, parties in major, complex civil disputes were taking their conflicts to settings other than courtrooms. As a judge, Frankel saw fewer opportunities to be involved in resolving conflicts, which was the aspect of his job he most enjoyed. He also felt drawn to the idea of working in a more collaborative environment, unlike the relatively solitary worklife of a judge.

So when Madison Gas & Electric offered Frankel a position as general counsel, he accepted. After two years, desiring to work with a broader array of clients and to delve still deeper into corporate problem solving and dispute resolution, Frankel migrated to his current position at LaFollette Godfrey & Kahn.

About a year before he left the bench in 1999, Frankel passed through another major life transition. He and his wife Sherrie Gruder had a baby girl, Jamie, adding one more to their family of three, including Frankel's teenage stepdaughter Chelsey. After Jamie was born, Frankel took a five-month paternity leave from the bench so he could be with her full-time. It was another instance in his career when he broke away from the norm. While he may not be the only judge in the state to take an extended paternity leave while in office, he's certainly among only a few.

"It was in no way surprising to me that he did that," says Dane County circuit judge Michael Nowakowski, one of Frankel's former softball teammates and judicial colleagues. "In fact, I would have been surprised if he'd failed to do that. I knew how thrilled Mark was over the prospect of being a parent."

Indeed, Frankel had no doubts about his priorities. "I was an old-guy parent when Jamie was born," he notes. "I'd waited a long time to have my own child. And I was going to make the most of it."

That latter comment seems to apply to his outlook on his newest career venture as well. Frankel, now 53, intends to make the most of his experience in client advocacy, litigation, mediation, and acting as a neutral decision-maker, in his work with clients ranging from small businesses to multinational corporations to government entities. "One of my big interests going forward," he says, "is to combine my mediation/negotiation skills with litigation skills. I think that's the wave of the future as far as most litigators are concerned."

Wisconsin Lawyer